TorrentSpy, as its name suggests, is a BitTorrent indexing site. Considering much of the terminology associated with file-sharing is rooted in little more than colloquialisms, the exact function of a "BitTorrent indexing site" is generally considered a "catalog" of available files - including movies. An indexer shouldn't be confused with a tracker, which hosts the actual torrent file, coordinates the file swarm and directs BitTorrent traffic.

Such indexing/tracking sites, such as SuperNova, EliteTorrent, and LokiTorrent, have been the target of the movie industry in their effort to styme the flow of unauthorized content. The movie industry claims their primary function was to facilitate widespread copyright infringement.

The MPAA filed its lawsuit against the BitTorrent indexer back on February 23, 2006. The complaint cited the defendants knowingly "enable, encourage, induce and profit from massive online piracy."

Blindsided by the MPAA's selection of TorrentSpy as its next example of copyright enforcement, Justin Bunnell and the named defendants have decided to fight back. In a motion submitted to the United States District Court of Central California, the legal council representing TorrentSpy asked for the complaint's dismissal.

The main impetus of TorrentSpy's motion claims they cannot be liable for copyright infringement - whether primary or secondary - because the site itself does not infringe on any intellectual property rights. In other words, how can TorrentSpy possibly encourage or participate in piracy when there is no infringing activity on TorrentSpy? In Justin's words, "we are just responding to the baseless MPAA claims."

Typically the MPAA doesn't target random websites or pick names out of a hat. It would seem however, the MPAA is concerned with the content of TorrentSpy based on more tangible evidence. Most of the MPAA's complaint is filled with typical legal fluff, but there was a single passage that could prove to be the catch-all.

Defendants have actual and constructive knowledge of the infringing activity that occurs on their torrent site.

TorrentSpy responds by reiterating the points made above; they couldn't possible have knowledge of infringing activity since the very nature of TorrentSpy is non-infringing.

A defendant must possess either actual or constructive knowledge of the infringing activity to be found contributorily liable. Ellison, supra. Here, there is no actual infringing activity and no knowledge, actual or constructive, of any infringing activity. At most there are claims that defendants have a duty to acquire knowledge by inspecting indices of uploads and comparing filenames found there with some speculative compendium of copyrighted titles. No such duty exists.

The big question for the courts is whether TorrentSpy is a victimized search enginge or a facilitator of piracy. TorrentSpy hosts no torrent files, media files or other infringing material. They do however, index material that may be construed at infringing. Whether this is primary or secondary infringment remains the big question, and appears this confusing issue may finally achieve closure in the courts.

The courts will have to question whether TorrentSpy is responsible for the torrents indexed on their site, or whether they have no such duty to eliminate potentially infringing content. If knowledge of infringement is all the MPAA needs to enforce their member company's copyright, and the courts accept that as grounds for infringement, TorrentSpy may have difficulty justifying they're not liable for the actions of their users.